J.S. v. Vill. Voice Media Holdings, LLC

Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively

J.S.), allegedly were posted on a website owned and maintained by Village Voice

Media Holdings, d/b/a Backpage.com, Backpage.com LLC and New Times Media

LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped

multiple times by adult customers who responded to the advertisements.

J.S. filed a complaint alleging state law claims for damages against

Backpage and Baruti Hopson.1 J.S. asserted claims for negligence, outrage, sexual

exploitation of children, ratification/vicarious liability, unjust enrichment, invasion

of privacy, sexual assault and battery, and civil conspiracy. Backpage moved to

1 Hopson was found guilty of raping, assaulting, and prostituting one of the plaintiffs. J.S. did not pursue its action against Hopson. Appellant's Opening Br. at 7 n.2.

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dismiss on the theory that it is immune from suit in relation to J.S. 's state law

claims under the federal Communications Decency Act of 1996 (CDA), 47 U.S.C.

§ 230.2 J.S. countered by arguing that Backpage is not immune from suit in part

because its advertisement pos.ting rules were "designed to help pimps develop

advertisements that can evade the unwanted attention of law enforcement, while

still conveying the illegal message." Clerk's Papers (CP) at 201. The trial court

denied the motion to dismiss, allowing J.S. 's case to proceed. Backpage moved for

discretionary review. The Court of Appeals granted review and certified the case

to this court for direct review. Order Certifying Case for Transfer, JS. v. Vill.

Voice Media Holdings, LLC, No. 44920-0-II (Wash. Ct. App. July 17, 2014).

J.S. allegedly was featured in Backpage advertisements posted in accordance

with instructions on Backpage's website without any special guidance from

Backpage personnel. J.S. alleges that all of the advertisements featuring J.S.

complied with Backpage's content requirements.

Backpage does not allow advertisements on its website to contain naked

images, images featuring transparent clothing, sexually explicit language,

suggestions of an exchange of sex acts for money, or advertisements for illegal

services. In addition to these rules, specifically for advertisements posted in the

2 Backpage removed this case to a federal district court based on diversity jurisdiction. That court remanded to state court.

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JS., S.L., andL.C. v. Village VoiceMediaHoldingsetal.,No. 90510-0

'"escort"' section of its website, Backpage does not allow "any solicitation directly

or in 'coded' fashion for any illegal service exchanging sexual favors for money or

other valuable consideration," "any material on the Site that exploits minors in any

way," or "any material ... that in any way constitutes or assists in human

trafficking." CP at 9-10.

ANALYSIS

A. Standard of Review

"A trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de

novo." Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore

v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). At this

stage, "we accept as true the allegations in a plaintiffs complaint and any

reasonable inferences therein." Reidv. Pierce County, 136 Wn.2d 195,201, 961

P.2d 333 (1998) (citing Chambers-Castanes v. King County, 100 Wn.2d 275, 278,

669 P.2d 451 (1983); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959,

961, 577 P.2d 580 (1978)). "CR 12(b)(6) motions should be granted 'sparingly

and with care' and 'only in the unusual case in which plaintiff includes allegations

that show on the face of the complaint that there is some insuperable bar to relief."'

Cutler v. Phillips Petrol. Co., 124 Wn.2d 749,755, 881 P.2d 216 (1994) (quoting

Hoffer v. State, 110 Wn.2d 415,420, 755 P.2d 781 (1988)). "Dismissal under CR

12(b)(6) is appropriate only if 'it appears beyond a reasonable doubt that no facts

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exist that would justify recovery."' In re Parentage of C.M.F., 179 Wn.2d 411,

418,314 P.3d 1109 (2013) (quoting Cutler, 124 Wn.2d at 755).

B. Federal Preemption

J.S. alleges that Backpage facilitated the violation of numerous Washington

laws, including violations of Washington's laws against trafficking, commercial

sexual abuse, and prostitution.3

Federal law, however, preempts state law when state law "would stand 'as

an obstacle to the accomplishment of the full purposes and objectives of Congress'

in passing§ 230 of the CDA." Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1134

(E.D. Va. 1997) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct.

2270, 110 L. Ed. 2d 65 (1990)), aff'd, 129 F.3d 327 (4th Cir. 1997), cert. denied,

524 U.S. 937 (1998). Applicable here, the CDA provides that "[n]o cause of

action may be brought and no liability may be imposed under any State or local

law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).

3 RCW 9.68A.040 (sexual exploitation of a minor), .050 (dealing in depictions of minor engaged in sexually explicit conduct), . 090 (communication with a minor for immoral purposes), .1 00 (commercial sexual abuse of a minor), .1 01 (promoting commercial sexual abuse of a minor), .1 03 (permitting commercial sexual abuse of a minor); RCW 9A.44.076 (rape of a child in the second degree), .079 (rape of a child in the third degree), .086 (child molestation in the second degree), .089 (child molestation in the third degree); RCW 9A.88.070 (promoting prostitution in the first degree), .080 (promoting prostitution in the second degree), .090 (permitting prostitution); RCW 9A.40.100 (trafficking); and RCW 9A.28.040 (criminal conspiracy); RCW 9A.82.060 (leading organized crime).

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Under the CDA, an "information content provider"4 may be subject to state

law liability in relation to content that it develops but an "interactive computer

service"5 is immune from suit for state law claims in relation to merely hosting

such content on a website. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,

1123 (9th Cir. 2003).

Accordingly, the CDA controls whether Backpage is immune from J.S. 's

state law claims. The scope of CDA immunity is a matter of first impression for

this court.

C. J.S. 's Claims Are Sufficient To Withstand the Motion To Dismiss

This case turns on whether Backpage merely hosted the advertisements that

featured J.S., in which case Backpage is protected by CDA immunity, or whether

Backpage also helped develop the content of those advertisements, in which case

Backpage is not protected by CDA immunity.

A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is also a content provider. Thus, a

4 An "information content provider" is "any person or entity responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3). 5 An "interactive computer service," however, is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2).

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website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.

Fair Hous. Council v. Roomates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir.

2008) (citing Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal.

2006)). A website operator, however, does not "develop" content by simply

maintaining neutral policies prohibiting or limiting certain content. See, e.g., Dart

v. Craigslist, 665 F. Supp. 2d 961, 968-69 (N.D. Ill. 2009).

Viewing J.S. 's allegations in the light most favorable to J.S., as we must at

this stage, J.S. alleged facts that, if proved true, would show that Backpage did

more than simply maintain neutral policies prohibiting or limiting certain content.

Those allegations include that (1) "Backpage.com ... has intentionally developed

its website to require information that allows and encourages ... illegal trade to

occur through its website, including the illegal trafficking of underage girls," (2)

"Backpage.com has developed content requirements that it knows will allow pimps

and prostitutes to evade law enforcement," (3) "Backpage.com knows that the

foregoing content requirements are a fraud and a ruse that is aimed at helping

pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false]

appearance that Backpage.com does not allow sex trafficking on its website," (4)

"the content requirements are nothing more than a method developed by

Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law

enforcement for illegal sex trafficking, including the trafficking of minors for sex,"

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( 5) Backpage' s "content requirements are specifically designed to control the

nature and context of those advertisements so that pimps can continue to use

Backpage.com to traffic in sex, including the trafficking of children, and so

Backpage.com can continue to profit from those advertisements," and (6)

Backpage has a "substantial role in creating the content and context of the

advertisements on its website." CP at 6, 8, 10, 12, 13. According to J.S.,

Backpage' s advertisement posting rules were not simply neutral policies

prohibiting or limiting certain content but were instead ~'specifically designed ...

so that pimps can continue to use Backpage.com to traffic in sex." Id. at 12.

Given J. S. 's allegations, it does not appear "'beyond a reasonable doubt that

no facts exist that would justify recovery"' in this case, and, therefore, dismissal of

J.S.'s claims under CR 12(b)(6) is not appropriate. In re C.MF., 179 Wn.2d at 418

(quoting Cutler, 124 Wn.2d at 755). It is important to ascertain whether in fact

Backpage designed its posting rules to induce sex trafficking to determine whether

Backpage is subject to suit under the CDA because "a website helps to develop

unlawful content, and thus falls within the exception to section 230, if it

contributes materially to the alleged illegality of the conduct." Fair Hous. Council,

521 F.3d at 1168. Fact-finding on this issue is warranted.

We find the plaintiffs have pleaded a case that survives the motion to

dismiss. Accordingly, we affirm the trial court and remand for further proceedings consistent with this opinion.